Colorado Tenants May Demand Jury Trial to Determine Factual Disputes in Certain Eviction Proceedings
Co-Author: Britney Beall-Eder
On October 21, 2024, the Colorado Supreme Court rendered its decision in In re Mercy Housing Management Group, Inc. v. Naomi Bermudez, issuing a noteworthy opinion for Colorado landlords and tenants. The Court held that there is a statutory right to a jury trial in Colorado to resolve factual disputes in a landlord/tenant eviction proceeding. Prior to the Colorado Supreme Court’s recent decision, the judge functioned as the fact finder in the case and ultimately determined the disputed factual issues with respect to evictions in Colorado. While the ultimate result or outcome in eviction cases is unlikely to change whether the eviction is decided by a court or a jury, In re Bermudez has forever changed the legal landscape for evictions in Colorado. Barring significant statutory changes to evictions, the time and expense to complete an eviction can no longer can be estimated or quantified given the option for a tenant to demand a jury trial for determination of factual disputes related to the issue of possession in an eviction.
In re Bermudez Background
The landlord/tenant fact pattern giving rise to the Court’s decision is not unique. The tenant was served with a Notice to Quit for purposes of terminating the tenant’s tenancy due to repeat violations of the underlying lease. Specifically, the Notice to Quit stated that the tenant had: (1) permitted an unauthorized guest to reside at the rental unit for longer than the period authorized by the tenant’s lease; (2) the unauthorized guest of tenant’s rental unit violated the prohibition in the lease against maintaining or repairing vehicles on the leased property; and (3) the unauthorized guest had threatened and harassed another resident of the property. At the termination of the notice period following the Notice to Quit, the tenant did not vacate the property.
The landlord subsequently filed an eviction proceeding, seeking possession of the rental property, not requesting monetary damages. The tenant timely filed an answer, requesting a jury demand and paying the requisite jury fee. At the trial court level of the eviction proceeding, the county court denied the tenant’s jury demand and set the matter for a bench trial concluding that there was no constitutional right to a jury trial in civil matters in Colorado, such as the instant eviction. The tenant then filed an appeal challenging the trial court’s decision and asserting a right to a jury trial in the eviction proceeding, resulting in the Court’s recent decision.
Court’s Analysis
In its opinion, the Colorado Supreme Court evaluated the language of the forcible entry and detainer statutes (the “FED” statutes), the statutory scheme applicable to evictions in Colorado, as well as the rules governing county court procedure. The Court concluded that while there is no constitutional right to a jury trial in civil matters in Colorado, there is a statutory right to a jury trial in eviction proceedings when there is an issue of fact to resolve pertaining to the issue of possession to the property. More specifically, the Court held that Colorado statute “assigns to the jury the role of resolving factual disputes underlying the issue of unlawful detainer, and to the court the role of resolving the ultimate legal question of whether the defendant committed an unlawful detainer.”
The Court considered various policy arguments raised by the parties in connection with its decision, including the large volume of eviction cases in the state and whether state resources could support the potential number of jury trials that would be possible in evictions. Despite the county court arguing against the statutory right to a jury trial in an eviction due to the anticipated impacts on county courts, the Colorado Supreme Court did not find those policy arguments compelling. The Court reasoned that the number of jury trials was not anticipated to be so substantial as proposed, given the majority of eviction cases result in a default judgment in Colorado anyway where no answer or jury demand is filed by the tenant, and in those cases where the tenant files an answer in the eviction proceeding. The Court noted that many tenants will not demand a jury or pay the requisite jury fee. Similarly, the Court also noted that many other evictions will be ineligible for a jury trial because the issues for consideration are grounded in equity to be determined by the court, or the tenant’s lease contains a contractual jury-trial waiver for a hearing to determine possession.
With respect to the Court’s discussion regarding contractual jury-trial waivers in Colorado leases, the Court noted that Colorado law permits parties to contractually agree to a “waiver of a jury trial in a hearing to determine possession of a dwelling unit.” The Court highlighted that while an existing statute limits the right to contractually waive the right to a jury trial altogether, the statute permits a limited waiver of a jury trial in hearings to determine possession of a dwelling unit, which the Court noted will also inevitably reduce the amount of evictions eligible for a jury trial in Colorado. Therefore, a limited contractual lease waiver waiving the right to a jury trial in hearings to determine possession of a dwelling unit remains permissible under the law so long as the limited contractual waiver does not run afoul of the limitations of C.R.S. § 38-12-801.
Impact on Eviction Cases
Moving forward, the Colorado Supreme Court’s decision In re Bermudez is anticipated to impact eviction cases significantly in Colorado where the tenant demands a jury to decide a factual dispute relating to the issue of possession and timely pays the jury fee. In these eviction matters eligible to have a factual issue determined by a jury, the timeline for a landlord to regain possession of a rental property is likely to take substantially longer than before this decision. A jury will have to be summoned for the hearing and the court will have to have available time on their docket to preside over the trial and “decide the ultimate legal question of whether the defendant has committed an unlawful detainer.” In addition to the timeframe for an eviction increasing, the cost for an eviction is also anticipated to greatly increase given the preparation and additional document compilation necessary to prepare a case to go before a jury for consideration.
While landlords should expect their fees and costs for an eviction case to increase substantially for an eviction where a factual issue must be heard by a jury, this increased financial burden is also likely to be passed down to tenants. Many leases contain a provision awarding the prevailing party in an eviction proceeding their reasonable attorney fees and costs from the other party in an eviction. Therefore, in cases where the landlord prevails and a judgment for possession enters against the tenant, a judgment against the tenant for the attorney fees and costs incurred by the landlord in the eviction proceeding, including any fees and costs incurred for a jury trial, may also enter against the tenant. Because additional time and expense is required to prepare for and conduct a jury trial, monetary judgments that include fees and costs incurred to conduct a jury trial can be substantial.
While some larger judgments obtained against tenants in evictions will not be collectible, other tenants may have or will obtain in the future, certain non-exempt assets which the landlord could seek to recover from the tenant in satisfaction of the judgment rendered against the tenant in the eviction action, if applicable. In Colorado, county court judgments are valid for six years, and district court judgments are valid for twenty years; thus, to the extent that a landlord recovers a large judgment against a tenant that includes substantial fees and costs for a jury to determine factual issues in dispute in an eviction, in most circumstances, the landlord may continue to attempt to collect the judgment amount from the tenant for a period of years.
In addition to the temporal and monetary impacts that are anticipated by the Court’s recent decision, another unintended consequence is the potential for landlords to exit the rental market altogether in Colorado. Landlords may withdraw from the rental market due to the time, expense, and statutory compliance measures necessary for landlords to comply with the recent and vast legislative changes in the area of landlord/tenant law. To the extent that landlords opt to leave the rental market altogether in Colorado due to the sweeping statutory changes that have and will cost landlords in Colorado time and money, a reduction in available residential rental inventory in Colorado is also anticipated, along with higher rents imposed by landlords to cover the risk of potentially having to litigate a timely and costly eviction proceeding before a jury.
Due to the increased time and money that will result in some eviction proceedings following the Court’s recent decision, landlords are encouraged to perform due diligence to appropriately screen prospective tenants prior to entering into any landlord/tenant lease. Landlords should also consider carefully drafted lease provisions to attempt to reduce exposure and risk related to the expense and complexity of a jury trial to determine disputed factual issues pertaining to the issue of possession. While landlords and property managers may need to spend more time and resources on tenant screening costs and due diligence regarding a tenant’s ability to pay a lease obligation prior to entering into any lease, the additional efforts are anticipated to pay off in the end as the landlord may be able to avoid the time and significant expense of a jury trial to regain possession of their rental property.
This article is not and shall not be construed as legal advice. Statutory text and case law should be reviewed for specifics and certain exceptions may apply that are beyond the scope of this article. For lease enforcement and eviction guidance, contact attorney Caroline Young.
